Welter & Welter - [2021] FedCFamC2F 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welter & Welter [2021] FedCFamC2F 11

File number(s): ADC 2743 of 2017

Judgment of: JUDGE BROWN

Date of judgment: 15 September 2021

Catchwords: FAMILY LAW – children – parenting application following final orders made by consent in 2019 – Rice & Asplund argument – discussion of the principles relevant to Rice & Asplund – application for summary dismissal – best interest considerations – how the court determines a child’s best interests – where co-parenting relationship is fractured – application of paramountcy principle – whether there has been a significant change of circumstances since the proceedings have been finalised – discussion of whether there are sufficient circumstances to re-open the proceedings – discussion of the likelihood of a variation to the final orders – where there is a need to protect the child concerned from further litigation – no reasonable prospect of success for the application filed

Legislation:
Family Law Act 1975 (Cth) Div 12A, Pt VII ss 11F, 60CA, 60CC, 68LA, 65DAA, 69ZN, 69ZQ, 69ZR.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

Cases cited:
CDJ & VAG (1998) 23 Fam LR 755.

Deiter & Deiter [2011] FamCAFC 82.

In the Marriage of Bennett (1990) 14 Fam LR 397.

In the Marriage of McEnearney (1980) FLC 90-866.

King & Finneran [2001] 42 Fam LR 1.

Marsden & Winch (2009) 42 Fam LR 1.

Rice & Asplund [1978] FamCA 84.

SPS & PLS [2008] FamCAFC 16.

Walter & Walter [2016] FamCAFC 56.

Division: Division 2 Family Law

Number of paragraphs: 134

Date of hearing: 3 August 2021

Place: Adelaide

Counsel for the Applicant The Applicant appearing in person

Solicitor for the Respondent Douglas Hoskins Legal

Counsel for the Respondent Ms Tinning

Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia

Counsel for the Independent Children’s Lawyer Ms Lee
ORDERS

ADC 2743 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR WELTER

Applicant

AND:
MS WELTER

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

15 SEPTEMBER 2021

UPON NOTING THAT:
1.The orders made by consent dated 12 February 2019 remain in full force and effect.

THE COURT ORDERS THAT:
2.The proceedings and all outstanding applications be dismissed.
3.The appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Welter & Welter

Details

AGLC: Welter & Welter [2021] FedCFamC2F 11
Case: [2021] FedCFamC2F 11
Decision Date: 15 September 2021

CaseChat Overview and Summary

Welter & Welter was a parenting application brought by Mr Welter following final orders made by consent in 2019. The application sought to amend the existing parenting orders in light of the changed circumstances since the final orders were made. Ms Welter, the respondent, sought a summary dismissal of the application on the basis that there was no reasonable prospect of success. The Independent Children's Lawyer was also involved in the proceedings. The matter was heard in the Family Court of Australia by Judge Brown.

The court was required to determine whether the application should be summarily dismissed under the Family Law Act 1975. The court considered the principles relevant to the Rice & Asplund argument and the factors that should be considered when determining a child's best interests. The court also considered the paramountcy principle and whether there had been a significant change of circumstances since the final orders were made. The court was required to determine whether there were sufficient circumstances to re-open the proceedings and whether there was a likelihood of a variation to the final orders. The court also considered the need to protect the child concerned from further litigation.

The court found that the application had no reasonable prospect of success. The court found that the co-parenting relationship between the parties was fractured and that there was a need to protect the child from further litigation. The court found that there had not been a significant change of circumstances since the final orders were made and that there were insufficient circumstances to re-open the proceedings. The court found that there was no likelihood of a variation to the final orders. The court dismissed the application and discharged the appointment of the Independent Children's Lawyer.

The court ordered that the proceedings and all outstanding applications be dismissed and that the appointment of the Independent Children's Lawyer be discharged. The orders made by consent dated 12 February 2019 remained in full force and effect.

Orders

Orders of the court

ADC 2743 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR WELTER

Applicant

AND:

MS WELTER

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

15 SEPTEMBER 2021

UPON NOTING THAT:

1. The orders made by consent dated 12 February 2019 remain in full force and effect.

THE COURT ORDERS THAT:

2. The proceedings and all outstanding applications be dismissed.

3. The appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 2743 of 2017
Judgment of:	JUDGE BROWN
Date of judgment:	15 September 2021
Catchwords:	FAMILY LAW – children – parenting application following final orders made by consent in 2019 – Rice & Asplund argument – discussion of the principles relevant to Rice & Asplund – application for summary dismissal – best interest considerations – how the court determines a child’s best interests – where co-parenting relationship is fractured – application of paramountcy principle – whether there has been a significant change of circumstances since the proceedings have been finalised – discussion of whether there are sufficient circumstances to re-open the proceedings – discussion of the likelihood of a variation to the final orders – where there is a need to protect the child concerned from further litigation – no reasonable prospect of success for the application filed
Legislation:	Family Law Act 1975 (Cth) Div 12A, Pt VII ss 11F, 60CA, 60CC, 68LA, 65DAA, 69ZN, 69ZQ, 69ZR. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
Cases cited:	CDJ & VAG (1998) 23 Fam LR 755. Deiter & Deiter [2011] FamCAFC 82. In the Marriage of Bennett (1990) 14 Fam LR 397. In the Marriage of McEnearney (1980) FLC 90-866. King & Finneran [2001] 42 Fam LR 1. Marsden & Winch (2009) 42 Fam LR 1. Rice & Asplund [1978] FamCA 84. SPS & PLS [2008] FamCAFC 16. Walter & Walter [2016] FamCAFC 56.
Division:	Division 2 Family Law
Number of paragraphs:	134
Date of hearing:	3 August 2021
Place:	Adelaide
Counsel for the Applicant	The Applicant appearing in person
Solicitor for the Respondent	Douglas Hoskins Legal
Counsel for the Respondent	Ms Tinning
Solicitor for the Independent Children’s Lawyer	Legal Services Commission of South Australia
Counsel for the Independent Children’s Lawyer	Ms Lee

ADC 2743 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WELTER Applicant
AND:	MS WELTER Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	15 SEPTEMBER 2021